7. Lasting Power of Attorney

The Lasting Power of Attorney (LPA) role was established by the Mental Capacity Act 2005 (MCA).

The LPA replaced the Enduring Power of Attorney (EPA) as the way of appointing decision makers for a time when a person may lack capacity.

Only EPAs made and signed prior to 1st October 2007 can still be used.

LPAs increase the range and type of decisions a person can authorise others to make on their behalf.

There are two types of LPA:

1. financial and property and
2. health and welfare.

They are separate types with separate forms, and cannot be combined in one document.

The person who makes the LPA is known as the ‘donor’. The donor must:

• be aged 18 or over;
• have the mental capacity to understand the purpose and effect of making the LPA;
• be an individual – couples cannot make an LPA together.

The LPA replaces an unregistered EPA.

It gives the donor the choice to plan for a time when they may lack capacity to make decisions for themselves in the future.

It enables the donor to choose trusted people to make decisions on their behalf.

It includes important safeguards for the donor.

The Attorney (person appointed) must pay regard to the Mental Capacity Act 2005 Code of Practice (2007).

Attorneys are governed by the principles of the MCA.

Before any decision an attorney must first be satisfied that it is in the donor’s best interests.

In relation to best interests, attorneys must have regard to the MCA 2005 Code of Practice.

An attorney can make any decision the donor would make in respect of finances and property.

The decisions can be subject to restrictions and conditions imposed by the donor within the LPA document. Generally, attorneys will:

• pay regular bills;
• manage income and expenditure;
• buy or sell property;
• manage investments or even carry on a business.

Attorneys for health and welfare may make decisions that the person would normally make including:

• where they live and with whom;
• accessing medical records;
• deciding what they wear;
• deciding what they eat.

They can also consent to or refuse to consent to:

• life sustaining treatment;
• artificial nutrition or hydration;
• any decision a doctor considers necessary to sustain life;

The LPA must specify the donor’s intentions and instructions.

Who does the donor want to make decisions about life sustaining treatment on their behalf?

Option A: give attorney/s authority to give or refuse consent to life-sustaining treatment on the person’s behalf. If the donor chooses this option, their attorney/s can speak to doctors on their behalf as if they were the person;

Option B: do not give attorney/s authority to give or refuse consent to life-sustaining treatment on their behalf. If the donor chooses this option, the doctors will take into account the views of the attorneys and of people who are interested in their welfare as well as any written statement they may have made, where it is practical and appropriate.

7.1 Is this back door euthanasia?

No. Section 62 of the Act emphasises that nothing done in the Act effects laws relating to murder, manslaughter or section 2 of the Suicide Act 1961;

Section 4(5) of the Act states that no one can make a decision about life sustaining treatment, if they are motivated by a desire to bring about death.

• As a single attorney;
• More than one attorney, to act:
  • together;
  • together and independently;
  • together in respect of some matters and together and independently in respect of others;
• Replacement attorney.

LPA forms are available to create online or download to print as a paper version.

The donor and attorney/s will need to read all the information provided, see Make, register or end a lasting power of attorney (HM Government). It can be read to someone unable to read / see.

The LPA forms are divided up into different sections:

• The donor’s statement;
• The attorneys ;
• How should attorneys make decisions?
• Replacement attorneys;
• Life sustaining treatment (health and welfare only) / When can your attorneys make decisions? (financial and property affairs only);
• People to notify when the LPA is registered;
• Preferences and instructions;
• Your legal rights and responsibilities;
• Signature: donor;
• Signature: certificate provider;
• Signature: attorney or replacement.

In Section 6, the donor can include people whom they want to notify when the LPA is registered. This is up to five named parties who are to be informed at the point of registration. However, they do not have to choose people to notify if they do not want.

The certificate provider confirms that the donor’s understands the LPA.

The certificate provider signs to confirm they have discussed the LPA with the donor, that the donor understands what they’re doing and that nobody is forcing them to do it.

There are two different categories of certificate provider, but only one is required to complete the form. The ‘certificate provider’ should be either:

• someone who has known the donor personally for at least two years, such as a friend, neighbour, colleague or former colleague;
• someone with relevant professional skills, such as the donor’s GP, a healthcare professional or a solicitor.

An attorney cannot also be a certificate provider.

Registration of an LPA costs £82 (for each one).

Objections on factual grounds must be made to the Office of the Public Guardian, for example:

• bankruptcy;
• death of attorney;
• death of donor.

Objections on prescribed grounds must be made to the Court of Protection, for example:

• the person objecting does not believe the donor had capacity to make an LPA;
• the donor revoked the LPA when they had capacity;
• fraud or undue pressure was used to induce the donor to make an LPA;
• the attorney is not acting in the donors best interests.

The following are the safeguards and benefits which have been built into the LPA process:

• choice of notifiable parties;
• certification process;
• attorney must have regard to the Code of Practice;
• restrictions and conditions can be made in the LPA;
• option of replacement attorney.

They should:

• always get a copy of the LPA;
• remember it cannot be used unless it is registered (this takes about 8-10 weeks);
• remember it cannot be used if an objection is lodged;
• check a health and welfare LPA against any advance decision to refuse medical treatment;
• remember if the advance decision was made before the LPA, the LPA overturns it;
• remember if the advance decision was made after an LPA, it takes priority;
• remember a property and financial affairs LPA can be used as soon as it is registered, for example if the donor requires assistance with banking arrangements, therefore it can be used before the donor loses capacity, as well as afterwards;
• remember a health and welfare LPA can only be used when the donor loses capacity;
• remember a valid attorney is always the decision maker for LPA approved actions.